FAMILY NEWS & VIEWS A PUBLICATION OF AFCC-NEW YORK

A Trauma-Informed Approach to Assess and Intervene in Resist/Refusal Cases by Michael A. Saini, M.S.W., Ph.D., Leslie M. Drozd, Ph.D. and Robin M. Deutsch, PhD, ABPP Abstract IN THIS ISSUE Based on a multifactorial exploration of various factors that may influence strained parent-child relationships, we introduce a new trauma-informed practice 1(2): A Trauma-Informed approach. In this brief note, we highlight the need to consider trauma histories Approach to Assess and unresolved trauma experiences when assessing and intervening in cases of and Intervene in strained parent-child relationships. The purpose of considering trauma is not to Resist/Refusal Cases replace existing approaches for working with children who resist or refuse a parent post separation, but rather to enhance our understanding of the various factors that 1(8): Night Shifts: Revisiting may be influencing the strain. Restrictions on Children’s Overnights with Introduction Separated Parents Due to the complexity of resist and refusal dynamics, Trauma provides working with strained family relationships is 11: Insights into the Role another lens perhaps one of the most challenging populations of Experts in Child for considering to engage in services (Saini, Johnston, Fidler & Custody Litigation the complexity of Bala, 2016). In response to these highly volatile strained parent-child 18: Weisberger v. Weisberger situations, several interventions have been relationships Best Interest, Personal developed to mitigate the negative impact of resist Rights, Parents’ Contractual and refusal cases (Baker, Burkhard & Albertson- Rights in the Raising of Kelly, 2012; Gardner, 2001; Kumar, 2003; Reay, 2007; Children Under a Sullivan, Ward, & Deutsch, 2010; Toren, Bregman, Zohar- Defined Religion Reich, Ben-Amitay, Wolmer & Laor, 2013; Warshak, 2010). 20: Parenting Coordination: There are many reasons why a child may resist or refuse contact with a parent, The Genesis and including: developmental factors such as separation anxiety Continued on page 4 Development of the Field

23: Joint Versus Sole Physical Custody: Night Shifts: Revisiting Restrictions on What Does the Research Tell us About Children’s Children’s Overnights with Separated Parents Outcomes? by Richard A. Warshak, Ph.D.

26: Joint Custody: A divorcing couple consulted two experts about a parenting plan for their Should there be a young child. One expert, prioritizing continuity of care, advised that the Presumption? child who is accustomed to both parents’ daily care, and has a relationship RESEARCH, QUESTIONS & TRENDS with both parents, should continue seeing both parents frequently, including overnights. The other expert believed that the more time the baby is away 2018 Volume 2, Issue 3 from the mother, the greater the risk to the child’s development. Thus, the AFCCNY.ORG father should reduce the frequency and amount of his Continued on page 11 Continued from page 1... considered to be well beyond basic human experience; A Trauma-Informed Approach to Assess and therefore, it has the tendency to cause extensive distress Intervene in Resist/Refusal Cases to most individuals (Khalily, Wota, & Hallahan, 2012). Not all individuals who experience a traumatic event for younger children; alignments with a parent; gender will continue to experience symptoms of trauma. Several preferences or affinity for a parent; a child reacting to protective factors have been found to buffer the negative parental conflict and/or exposure to intimate partner effects of trauma, including a positive support system and violence; or a child refusing or resisting contact with a stable mental health status prior to the traumatic event parent due to the parent’s conduct (Fidler, Bala & Saini, (Carlson, Palmieri, Dalenberg, Macia & Spain, 2016). 2013). Each of these strained parent-child problems can Both children and parents can be impacted by unresolved also be influenced by a complex interaction of other trauma (Lieberman, Ghosh Ippen, Van Horn, 2005). Parents factors that overlap and contribute to the strained with their own histories of childhood trauma can feel less relationships. competent in their parenting and can experience parenting Trauma provides another lens for considering the as more stressful (Ruscio, 2001). In addition, studies have complexity of strained parent-child relationships suggested that child trauma exposure can cause parental (Drozd, Saini & Vellucci-Cook, in press). post-traumatic distress, even when parents were Exploring the potential impact of trauma not directly exposed to the event (Schwartz, for resist and refusal cases should be Dohrenwend, Levav, 1994). considered as an enhancement model to Not all individuals When parents have also experienced current approaches. Careful screening who experience a interpersonal trauma, their ability to and assessment of trauma provides one traumatic event will establish and maintain an empathic of the multiple hypotheses that should continue to experience relationship with the child may be be considered when investigating the symptoms of trauma impaired. They may also have a various pathways that lead to or influence decreased capacity to recognize danger strained parent-child relationships. or stress and, in some cases, the child may Trauma within Strained Parent- take on the role of caregiver (Groves, 2002). In Child Relationships these situations, the parent’s ability to listen to the child’s distress may be limited due to the need to protect The attention to traumatic experiences has been amplified him/herself from feelings of vulnerability and trauma in recent decades with increased attention to the long- (Groves, 2002). term health and mental health consequences of adverse childhood experiences (ACEs), such as multiple types Given the high rate of trauma exposure in the general of maltreatment and neglect; violence between parents; population, and that separation and divorce can be household dysfunctions such as alcohol, substance abuse considered adverse experiences, it is important for and high conflict separation and divorce; and peer and family law professionals to understand the history of community violence (Brown, Anda, Tiemeier, Felitti & trauma as a mental health concern and to consider best Edwards, 2009; Felitti, Anda, Nordenberg, Williamson, methods to integrate evidence-informed interventions to Spitz, Edwards, Koss, & Marks, 1998). Felitti and best meet the needs of children and families experiencing colleagues (1998) have found that lifetime effects of ACEs unresolved traumas (Drozd, et al., in press). include: neurological developmental delays; suicide, increased risk of heart disease; cancer; strokes; chronic Trauma Screening bronchitis; respiratory problems; diabetes; increased The need to screen for intimate partner violence (IPV) fractures and hepatitis. in every case has been well established (see AFCC IPV Guidelines, 2016), but less attention has been given to A traumatic event is, “…a natural emotional reaction screen for trauma, which typically consists of determining to terrible experiences that involve actual or threatened whether a traumatic event has occurred and whether serious harm to oneself or others,” (CAMH, 2012). there remains unresolved trauma-related symptoms Examples of such experiences can be, but are not limited (Drozd, et al., in press). The most important domains to to, rape, torture, exposure to intimate partner violence, screen among children and parents with trauma histories being held captive, fighting and/or living in a war zone, include: trauma-related symptoms; depressive or car accident, and natural disasters. The event is generally dissociative symptoms, sleep disturbances, and intrusive

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 experiences; past and present mental disorders, severity Trauma assessment should only be completed by mental or characteristics of a specific trauma type; substance health professionals with qualifications and experiences to abuse; social support and coping styles; availability of assess the nature and severity of trauma related symptoms resources; risks for self-harm, suicide, and violence and and to develop treatment plans targeted to treat the overall health screening (Center for Behavioral Health trauma symptoms (Drozd, et al., in press). Qualifications Statistics and Quality, 2015). for conducting trauma assessments typically include advanced degrees, licensing or certification, and special Trauma screening tools should be used to quickly training in administration, scoring, and interpretation of determine whether a child has experienced trauma, specific assessment instruments and interviews (Center displays symptoms related to trauma exposure, and/or for Substance Abuse Treatment, 2014). should be referred for a comprehensive trauma-informed mental health assessment. Some examples of trauma A trauma assessment typically delves into a client’s screening tools for children and adolescents include: 1) past and current experiences, psychosocial and cultural Juvenile Victimization Questionnaire (JVQ: Finkelhor, history, and assets and resources (Center for Substance Ormrod, Turner & Hamby, 2005); 2) Traumatic Events Abuse Treatment, 2014). Assessment protocols typically Screening Inventory (TESI: Ford, Racusin, Ellis, Daviss, involve more than a single session to complete, and Reiser, Fleischer, et al. 2000); and 3) Trauma Symptom usually use multiple data sources to obtain the necessary Checklist for Children (TSCC: Briere, Johnson, Bissada, clinical information, including self-assessment tools, Samon, Crouch, Gil, Hanson, & Ernst, 2011). past and present clinical and medical records, structured clinical interviews, assessment measures, and collateral Assessment of Children’s Resistance information from significant others, other behavioral and Rejection health professionals, and agencies (Drozd, et al., in press). When a child has been screened to have experienced a The comprehensive assessment should also include potential traumatic event, history or the experience of an analysis of the various factors that may impede or trauma symptoms, the next step should be to complete facilitate trauma recovery, including any parent-child a comprehensive trauma assessment to determine and contact problems. define presenting struggles and to determine the best treatment approach (Drozd, Saini & Vellucci-Cook, in To consider all potential factors that may be influencing a press). Unlike trauma screening that considers only the strained parent-child relationship (including the potential potential presence of trauma, a comprehensive trauma of trauma related factors), it is best to use a decision tree assessment determines the nature and extent of the (e.g. Drozd & Olesen, 2004; Drozd, Olesen, & Saini, 2013) trauma and its potential impact on coping, parent-child for brainstorming the potential presence of factors and relationships and parenting plan considerations. the potential relationship among them (see Figure 1).

Figure 1: Resist-Refuse Decision Tree (Drozd, Olesen & Saini, 2013)

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Considerations for Treatment symptoms should be initiated before implementing a plan to restore the parent-child relationship. Early It is critical to differentiate between stressful situations intervention is critical so that the child and the parent and responses to stress and a trauma response that may be better informed about the influence of trauma on will require different interventions and/or timing of their parent-child relationship. Early intervention is also procedures (Drozd, Saini & Vellucci-Cook, in press). Post- critical to prevent prolonged exposure to the traumatic stress requires intervention as early as trauma symptoms. possible, as such symptoms, if not treated, could have a devastating impact on the Treating While contracting with children and present and future lives of children (Keyser, parents resulted in parents about the treatment plan, it is Seelaus, & Kahn, 2000). This is particularly important to make clear expectations decreased behavioral true for children who lack social support about the frequency of meetings, the and depressive in their natural environment. Parents play timeframes for achieving short and an important role in helping children cope symptoms in long term goals and the expectations with fears and anxiety, but they do not children for family members to participate in always recognize the children’s symptoms the various parts of therapy (trauma or are unable to listen to their fears, sometimes treatment, psychoeducation, reunification, because they too are traumatized (Marans, 2005) individual coping skills, etc). Setting a pace of and/or they are too caught up in their own conflicts. therapy (e.g. weekly meetings) early in the process can help prepare the family members for the expectations In cases where a child has been assessed with trauma required of them to engage in the various therapy symptoms, most interventions include both children components (Saini, 2017). In cases of strained parent- and parents (e.g. joint, parallel, sequential) (Drozd, Saini child relationships, it is typical that family members do & Vellucci-Cook, in press). The accumulated evidence not initially agree with the pace of the proposed treatment suggests that it is important to include parents in the plan (e.g. a parent who wants daily contact with the treatment for trauma for children, especially due to the therapist to improve the relationship with their child; a connections of intergenerational traumas. Deblinger parent who would rather engage in treatment minimally Mannarino, Cohen, Runyon and Steer (2011) found that or not at all, because he/she does not see the value of the treating parents resulted in decreased behavioral and child having a relationship with the other parent; a child depressive symptoms in children. Cohen and Mannarino who wants to attend sessions with the therapist but not (1996) found that parents’ emotional reaction to trauma in the presence of the parents). Conflicts about the pace was the second strongest predictor of treatment outcome, and process of therapy are better addressed at the onset after treatment type. to create and maintain clear expectations for the time and commitment required by each family member. The National Child Traumatic Stress Network (NCTSN) provides a list of evidence-based treatments, including Treatment should include building coping skills the treatment developer, the intended age group, the (Greenberg and Gould, 2001; Greenberg, Gould, Gould- level of evidence, and a brief description of the focus and Saltman, & Stahl, 2003; Greenberg, Fidler & Saini, in press) design of the intervention. to address: desensitization and empowerment; emotional regulation; stress tolerance (hyper vs. hypo arousal); fight Shipman and Taussig (2009) note that evidence-based or flight responses; accurate informational processing: trauma treatment protocols are preferred modalities perceptions, interpretations, attributions; social skills and because these are empirically grounded based on well- competence including accurate reading of social cues; designed randomized control trials using outcomes that effect of trauma on memory and perceptions; reframing are connected to the specific treatment outcomes. Many and reclaiming; integrating parent and child (intensive of these approaches use specific strategies such as trauma structured family work/play). narratives, cognitive reframing, and emotion regulation skills. In addition, trauma-specific treatments often As Garber (2015) points out, the child may have developed require the active participation of parents. an anxious and phobic-like response to the rejected parent when trauma histories remain unresolved. Like In cases where trauma has been found to be impacting treating most phobias, using systematic desensitization and/or influencing the strained parent-child relationship, and cognitive behavioral therapy may assist to repair early intervention to first address the trauma related strained parent-child relationships.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 The Structure and Support of the Courts an understanding of the effects of trauma, they may misinterpret their child’s behavior and end up feeling AFCC Guidelines for Court-Involved Therapy (2010), frustrated or resentful. Working with children and notes that therapists working with families involved families in the context of family law should always in child custody disputes should avoid serving strive to promote safe environments for both children simultaneously in multiple roles, particularly if these and parents. Strong, frequent, or prolonged activation of create a conflict of interest. For example, the therapist the physiological stress response systems can exacerbate should not serve simultaneously as the therapist to assist toxic stress without the buffering protection provided by with the strained parent-child relationship while also in responsive, supportive relationships (Shonkoff, Garner, the role of forensic evaluator, mediator, arbitrator, etc. Siegel, Dobbins, Earls, McGuinn, et al., 2012) to make recommendations and/or decisions about parenting plan issues (e.g. determinations Children who suffer the consequences of acute about access). or chronic trauma need access to treatments that directly address their trauma and Working with children and parents in Children its impact and help them heal and the context of unresolved trauma and who suffer the build resilience. Potential treatment strained parent-child relationships will consequences of acute outcomes for post-traumatic stress in require a team approach (e.g. trauma or chronic trauma need children and parents that are supported therapist, reunification therapist, the access to treatments that by research evidence should include Court, etc.) working in collaboration. directly address their negative appraisals about safety and Developing a comprehensive treatment trauma vulnerability to future harm (Meiser- plan to address the various components Stedman, Dalgleish, Glucksman, Yule, of treatment allows for each member of the & Smith, 2009) and coping strategies for team to work within professional boundaries seeking support (Greenberg & Gould, 2011). and assigned roles. Trauma-specific treatments are now available that can be When step-up parenting plans are part of the plan (see used in a variety of settings and that have robust evidence Pruett, Deutsch & Drozd), it would be contrary to the for their safety and effectiveness. Effective screening AFCC Guidelines for Court-Involved Therapy (2010) for and assessment of trauma is critical to ensure that the therapist to determine the parenting time. Doing so trauma-specific treatments are part of the reintegration would involve the therapist assuming a dual role and can approach only in cases where trauma has first been compromise therapy. In these cases, it is critical to have established. The purpose of considering trauma is not the structure of the Court (or arbitration) to stipulate the to replace existing interventions for strained parent-child parenting plan and for the therapist to work within the relationships, but rather to enhance therapeutic options parameters set by the Court (or arbitrator) to re-establish when trauma symptoms may be influencing resist and parent-child relationships. rejection dynamics. Conclusion Key Considerations Treatment planning is critical for working with families with trauma histories so that clear expectations are For treatment to be effective within populations conveyed to the family members and so that there is struggling with family breakdown, several key the opportunity to track progress in meeting both short considerations are needed: and long terms goals. Some therapists resist detailing therapeutic plans as to not become too structured in First and foremost, treatment must be safe for the family the therapeutic process and/or so that they can follow members and the treatment. the lead of the family members in therapy. But working with strained parent-child relationships is qualitatively An event may be experienced by one child as traumatic different than other forms of therapy. Children and whereas another child exposed to the same event may not parents can be seriously damaged and may suffer experience the same event as traumatic. The difference long-term impairment if their therapeutic needs go of how these events may be experienced can depend unaddressed (Saini, 2017). on the child’s temperament (including as manifested in Children who have experienced traumatic events emotional problems before age 5), the exposure to prior need to feel safe and loved. When parents do not have traumas, other elements of childhood adversity, and if the

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 child has a self-blaming and/ Professionals involved includes the use of standard or avoidant coping strategy. are best-suited to provide protocols for screening and structure, measurable the assessment and the use of It is critical to not call goals, clear rules for parent evidence-informed treatment something “abuse” if there approaches when available. has been no (finding of) abuse. cooperation, a method of holding Therefore, a systematic and the parents accountable, and One role per case is the rule, credible assessment of abuse support. as boundaries are critical in is required prior to conducting these complex cases. any treatment specific to trauma. Sometimes treatment is needed It is best that someone other prior to an assessment having been than treating professionals sets the completed. In such cases, the therapy best parenting plan (e.g. the Court) so that the concentrates on the development and utilization treating therapist is not placed in the role of of coping strategies and the development of tools to help coming up with and/or trying to negotiation parenting the child manage his or her thoughts and feelings. When time decisions between the parents. children are very young, they may not be able to articulate Early intervention is critical (e.g. the creating of narratives that which they have experienced. They may not able to and/or a form of critical debriefing) to prevent prolonged articulate what they have experienced. They may not know exposure and the complexities that are inevitable if early what to call what happened. Therapy for these vulnerable interventions are not employed without remedies. children is supportive and educational to help them learn to manage emotions and cognitions and to learn that others Professionals involved are best-suited to provide are there to help them. structure, measurable goals, clear rules for parent cooperation, a method of holding the parents The Family systems approach works best, including accountable, and support. important work to be done with and on the coparenting relationship, with the goal to keep the parents child- The ambiance of the version of therapy called for is one focused while establishing facilitative gatekeeping and in which family members are encouraged to tap into the prevention of maladaptive restrictive gatekeeping. resiliency, exhibit a “can-do” attitude and an approach to challenges in which family members seek to control the An informed, systematic, transparent process is critical in things they can and to let go of the rest. both assessment and treatment of these complex cases. This

Michael A. Saini, PhD, is an Associate Professor at the Factor-Inwentash Faculty of Social Work, University of Toronto and holds the endowed Factor-Inwentash Chair in Law and Social Work. He is the Co-Director of the Combined J.D. and M.S.W. program. He is a Board Member of the Association of Family Conciliation and the Courts and an editorial board member for the Family Court Review and the Journal of Divorce and Remarriage.

Leslie Drozd, PhD, is a psychologist in Newport Beach, California in clinical and forensic psychology with expertise in family violence, alienation, resist-refuse dynamics in post-separation families, gatekeeping, child abuse, and substance abuse. She was the founding editor Journal of Child Custody, and is on the editorial board of Family Court Review and AFCC task forces that created the Model Standards of Practice and specialty guidelines for dealing with domestic violence in child custody evaluations. She is on the international and California AFCC and Overcoming Barriers Boards of Directors.

Dr. Robin Deutsch is the Director of the Center of Excellence for Children, Families and the Law at the William James and core faculty in the Clinical Psychology doctoral program. For over 20 years she was the Director of Forensic Services and Training at the Children and the Law Program at Massachusetts General Hospital and on the faculty at Harvard Medical School, most recently as an Associate Clinical Professor of Psychology. Board certified in Couples and Family Psychology, she practices as a mediator, Parenting Coordinator, reunification specialist, and consultant.

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FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Continued from page 1... presumed harmful, are acceptable when they benefit the Night Shifts: Revisiting Restrictions on Children’s primary caregiver—a policy that makes one parent the Overnights with Separated Parents gatekeeper of overnights. contact for the next few years and then Scholars who endorse blanket restrictions gradually “step up” his overnight rely heavily on three studies (McIntosh childcare and parenting time. The expert et al., 2010; Solomon & George, 1999; Tornello et al., 2013) to support their recommended that the father should Overnight spend two hours on Wednesday and recommendations. In Emery’s (2016) four hours on Saturday, but rarely, if decisions are high words, “Three of four studies raise ever, have his child overnight. stakes issues. concerns about babies spending too many overnights away from the Overnight decisions are high stakes primary caregiver in the first year to issues. On the one hand, there is the eighteen months of life” (p. 101). For concern that denying children more children younger than 18 months, Emery overnight care and contact with their fathers (n.d.) proposes schedules that range from no weakens the foundation of their relationship and overnights and no more than 6 hours of contact may leave emotional deficits that cannot be overcome with the father each week when parents have a “distant” when overnights begin after age four. On the other or “angry” divorce, to a maximum of two overnights per hand, there is the concern that additional overnight month when parents have a cooperative divorce. care from the father away from the mother exacts a toll by undermining the security of the attachment with A House of Cards: Analytic Gaps Between the mother. Rather than fostering the child’s healthy Scientific Evidence and Blanket Restrictions relationship with both parents, overnight shared Critics have identified multiple and serious flaws in the physical custody might leave children without a single three studies used to justify concerns about overnighting healthy attachment. (Cashmore & Parkinson, 2011; Fabricius, Sokol, Diaz, & Shifts In Blanket Restrictions Braver, 2016; Lamb, 2016, 2018; Ludolph, 2012; Millar & Kruk, 2014; Nielsen, 2014, 2015; Warshak, 2014, Opinions about overnights have shifted over time, 2018). The flaws include insufficiently valid measures, shifted from researcher to researcher, and sometimes results derived from faulty data of those measures, shifted from one article to another by the same writer. and unwarranted inferences drawn from those results. Articles published between 2000 and 2002 challenged For instance, three questions taken from a measure guidelines that restricted young children from sleeping in designed to assess infants’ readiness to learn language their father’s home (Gould & Stahl, 2001; Kelly & Lamb, were interpreted as an index of “emotional regulation” 2000; Lamb & Kelly, 2001; Warshak, 2000, 2002). These problems (McIntosh et al., 2010): Does your child (a) articles recommended that decision makers consider sometimes or often try to get your attention? (b) look to the option of overnights rather than follow absolute see if you are watching her or him at play? and (c) try to rules favoring or prohibiting overnights. Responses to get you to notice other objects? Overnighting babies had Kelly, Lamb, and Warshak emphasized the potential higher scores on this measure. Rather than interpret the risks of overnights, but agreed that the literature did not results as indicating greater readiness to learn language, contraindicate overnights. or that babies with higher scores enjoyed interacting with their mothers, McIntosh interpreted higher scores In 2011, McIntosh advocated a renewal of overnight as indicating impaired mother–child relationships. restrictions. Based on one government report (McIntosh Opinions that rely on such faulty studies are unreliable et al., 2010), along with her mistaken interpretation of a and not trustworthy (Warshak, 2017). study by Solomon and George (1999), McIntosh advised “caution” about children younger than three years Nevertheless, the report by McIntosh et al. (2010) had having as little as one overnight a month. She concluded: a strong impact. Extensive media coverage quoted “In early infancy, overnight stays are contraindicated, McIntosh describing dire consequences attributed to undertaken when necessary or helpful to the primary overnights (Nielsen, 2014). After AFCC publicly embraced caregiver, and when the second parent is already an McIntosh’s research and views on shared parenting and established source of comfort and security for the infant” overnights (see Kelly, 2014; Salem & Shienvold, 2014; (McIntosh, 2011, p. 4, emphasis added). McIntosh never Warshak, 2017), mental health experts frequently and explained why overnight stays, contraindicated and confidently cited McIntosh and her coauthors to caution against overnights. A major Australian newspaper wrote,

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 “The influence of this study on Australia’s family law from overnight parenting time up to and including system has been so profound that barristers have a special equally-shared overnights at both parents’ homes” (pp. phrase to describe the common experience of losing the 80–81). The second study, Bergström et al. (2018), found battle for some overnight care of toddlers—they joke that children 3 to 5 years old who spent about equal they’ve been ‘McIntoshed’” (Arndt, 2014). Lawyers in time in each parent’s home after separation had fewer several countries described the same experience. psychological symptoms than those who lived in other custodial arrangements. Shifting the Tide of Misinformation: A Consensus on Overnights And the Dance Continues Researchers and practitioners throughout the world The instrument, Charting Overnight Decisions for Infants expressed concern about the impact of questionable and Toddlers (CODIT) (McIntosh, 2015; Pruett, 2015), research and skewed views of settled social science proposes a presumption against more than one overnight research (see, Arndt, 2014; Lamb, 2012; Nielsen, per week for children younger than 18 months if 2015). Misinformation had generated their parents are in a dispute over custody, widespread confusion and uncertainty even when parents consistently and about whether the scientific community sensitively meet the children’s needs. had shifted its position on overnights. Simply by objecting to more frequent Many couples overnights, a mother’s preference To address these troubling concerns alternate prevails even if her objection is and stem the tide of misinformation capricious, even if her motives are that had been driving custody nighttime child care vindictive, or even if the father decisions, guidelines, and expert responsibilities. demonstrates superior parenting. opinions, I spent two years reviewing the relevant scientific literature. Then I The CODIT assesses behaviors such as vetted my analyses with an international “excessive clinging,” “frequent crying,” group of prominent authorities in the fields and “aggressive behavior,” with no anchors of attachment, early child development, parent- to distinguish between typical and atypical child relations, and divorce. The APA journal, Psychology, behavior. Even if behaviors such as excessive clinging Public Policy, and Law published a consensus report and frequent crying could be rated reliably, no studies with the endorsement of 110 social scientists and edited correlate scores on the CODIT—or decisions based on by Michael Lamb (Warshak, 2014). these scores—with outcomes for children. The CODIT assumes, without evidence, that troubling behaviors in The endorsers of the consensus report agreed that, in an infant or toddler that persist more than two weeks are general, a robust body of social science evidence supports caused or exacerbated by too much overnighting and can shared residential arrangements, including overnights, be resolved by restricting or eliminating overnights. Thus, for children under four years of age whose parents are as Austin (2018) argued, the CODIT gives gatekeeping separated. Circumstances that constitute exceptions to parents a means to rationalize restricting children’s the general recommendations include manifestations overnights with the other parent. of restrictive gatekeeping such as persistent and unwarranted interference with parenting time; a The Ecology of Overnights history or credible risk of neglect; physical, sexual, or Many mothers work evening and night shifts, leaving psychological abuse toward a child; a history of intimate fathers to deal with children’s bedtimes, middle of the partner violence; a history of child abduction; a child’s night awakenings, and morning routines (Boushey, 2006; special needs; and a significant geographical separation Burstein & Layzer, 2007; Fox, Han, Ruhm, & Waldfogel, between the parents. 2013). Also, many couples alternate nighttime child care responsibilities. Our society regards the father’s In 2017, two additional studies supported the consensus participation in these childcare activities as normal and report’s conclusions. Fabricius & Suh (2017) studied 116 desirable. These parents do not report unusual problems college students and found better outcomes for those who, between mother and child nor problematic behaviors for in the first three years of life, regularly spent overnights the arising from the father’s overnight care. with their fathers after their parents separated. “Even when parents present with high conflict, intractable In some families, an infant sleeps in one house on disagreement about overnights, and a child under 1 year weekdays and in another house on weekends. Young old,” Fabricius and Suh (2017) concluded, “both parent- couples often leave their baby on weekends with the child relationships are likely to benefit in the long term baby’s grandparents so that the couple can have romantic

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 time together. If infant sleeping Some scholars recommend that arrangements like these raise no Parenting plans need overnights be phased in through alarms when parents live together, to accommodate the a “step-up” plan based on the those who propose a double child’s age (Pruett, Deutsch, standard bear the burden to justify circumstances of & Drozd, 2016). If the goal is to a shift in how these arrangements are the parents. help the child and father acclimate judged after parents separate. to overnights, though, wouldn’t it Parenting plans need to accommodate the be easier if the overnights existed since circumstances of the parents. For instance, parents infancy? Furthermore, as Austin (2018) with a typical work schedule will be unable to spend two observed, a plan that requires periodic adjustments is half-days with their children every workweek. Even if likely to engender additional litigation. fathers could keep their jobs while regularly being absent Conclusion and Challenge Redux from work during the day, they are likely to suffer a loss in income, which forces a father to choose between time Considerations favoring overnights for most young with his child and providing adequate financial support. children are more compelling than concerns that overnights jeopardize children’s psychological development. This Parenting time schedules often include 2- to 3-hour conclusion carries the imprimatur of a consensus of 110 contacts during evenings. These contacts are hurried and stressful for both father and child—not situations that researchers and practitioners who define the accepted and foster sensitive and reciprocal interactions. Overnights settled view of science (Warshak, 2014). allow the father and child the time and structure to bond in ways that more closely resemble an intact family, and Nearly two decades ago (Warshak, 2000), I posed the to become accustomed to being in each other’s presence logical challenge: If sleeping away from both parents during the evening, at night, and in the morning. during nap time at daycare centers does not harm young children, and napping during the day in their father’s Kelly and Lamb (2000) underscored the special importance home does not harm young children, how can spending of parental care during the evening and overnights to the night in their father’s home harm them, when the provide opportunities for “crucial social interactions and majority of the time they are asleep and unaware of their nurturing activities” (p. 306) that are not possible without surroundings? What reasons or evidence can explain a overnights. As a result, the child’s trust in the parents is greater risk attached to nighttime care? By what logic promoted, strengthened, and consolidated. Spending do we deprive children after their parents’ separation time with their baby helps parents provide the regular of enriching bedtime and morning experiences enjoyed care that allows them to become attachment figures. by children in two-parent homes? These questions Also, spending more time with the baby offers more remain unanswered. opportunities for parents to hone their parenting skills through “on the job training” (Magill-Evans, Harrison, Fathers take the night shift in two-parent homes. They Benzies, Gierl, & Kimak, 2007) and to become more can, and should, do so when living apart from their confident in their abilities to understand and respond sensitively to their child’s needs (Lucassen et al., 2011). children’s mothers.

Richard A. Warshak, Ph.D. is a Clinical Professor of Psychiatry at the University of Texas Southwestern Medical Center in Dallas, Texas. In 14 books and more than 75 articles, Dr. Warshak has written about the psychology of alienated children; children’s involvement in custody disputes; and outcomes of divorce, child custody decisions, stepfamilies, relocations, and parenting plans for young children. Also he develops educational materials and conducts research on overcoming damaged parent–child relationships. Dr. Warshak’s book, Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing, widely regarded as a classic, is available in e-book, audiobook, and seven foreign editions. The video he co-produced, Welcome Back, Pluto: Understanding, Preventing, and Overcoming Parental Alienation, is used in every state in the U.S. and 30 foreign countries. His website, warshak.com, provides resources for professionals and their clients. Follow Dr. Warshak on Twitter and Facebook.

REFERENCES This article was adapted from: Warshak, R. A. (2018). Night shifts: Revisiting blanket restrictions on children’s overnights with separated parents. Journal of Divorce & Remarriage, 59. https://doi.org/10.1080/10502556.2018.1454193. The article, with all reference citations, and the consensus report on parenting plans for young children, are available on request from Dr. Warshak at [email protected]. The journal article is part of a special two-part issue of the Journal of Divorce & Remarriage titled: Shared Physical Custody: Recent Research, Advances, and Applications, edited by Professor Linda Nielsen.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Insights into the Role of Experts in Child Custody Litigation by Robert A. Simon, Ph.D.

In family law, when the parties cannot agree on an outcome • The ability to communicate expertise and opinions in and reach a settlement, the case typically proceeds to a clear fashion, absent of unnecessary and distracting trial. At trial, the judicial officer is tasked with receiving technical terminology (i.e., “psychobabble”) testimony (evidence), and based upon what is heard, what the judicial officer knows from other sources, and the • Specialized training in forensic assessment and prevailing laws and criteria in the jurisdiction. The Court forensic procedure, needed in cases when an expert has is tasked with reaching an understanding of the outcome assessed the family and provided recommendations suited to the best interests of the children in each case. On to the court with regard to the children’s best interests this basis, the court orders the child-sharing plan and other (commonly known as a child custody evaluation) elements of child custody (such as whether therapy for the • A clear understanding of the limits of one’s child and/or parents is indicated, whether conditions/ knowledge, expertise and the extent to which one’s restrictions are warranted, and other matters.) Even the role in the case may limit the nature of opinions one most experienced and insightful judicial officer is not, can ethically and competently proffer after all, an expert on child custody plans, parenting, child development and other important areas that may come into In litigated child custody matters, child custody experts play as determined by the needs of the family and typically come in one of three forms. These include the of the particular case. Courts regularly rely on child custody evaluator, the didactic expert and expert input and testimony to educate and the review/rebuttal expert. This article shall inform the Court. Experts, through their review the role of each of these three types of child custody experts, discuss how reports and their testimony, assist the The work and Court in acquiring a sufficient breadth these experts can assist the Court in and depth of information in areas role of the child making child custody determinations, in which the Court lacks expertise. custody evaluator is discuss the limitations of the work of Competent, clear, lucid and objective likely the most well these three types of experts and discuss reports and testimony from experts known and familiar some of the ethical issues that guide play a valuable role in promoting the and govern the work of these three development of parenting plans to to the reader. types of child custody experts. It is noted facilitate the best interests of the children. that while the discussion in this paper breaks these three roles down into separate Child custody experts are often a somewhat entities, in practicality, there is a realistic partial diverse group of professionals with varied areas overlap between the roles. As noted by Mnookin of expertise and backgrounds. Child custody experts and Gross (2003), it is essential that roles and functions share in common the following characteristics: of forensic professionals be identified, but that in most • Education and experience which provides them with cases in which forensic expert services are sought, there knowledge beyond common everyday knowledge in is inevitable overlap. their area of expertise The work and role of the child custody evaluator is likely • A commitment to the best interests and well-being the most well known and familiar to the reader. Because of the children and the optimal functioning of each it is not the purpose of this paper to explore the nitty- family (given the assets and liabilities in the particular gritty of the work of the child custody expert who is family and family system) providing custody evaluation, we will stay away from discussing the intricacies and complexities of this role. • A commitment to objectivity, honesty, truth, integrity The work of child custody experts who provide didactic and neutrality with regard to the outcome, no matter testimony in court or who provide review services for who hires and pays the expert attorneys and testify with regard to their opinions of the work of child custody experts performing custody • A commitment to ongoing professional education, evaluations is less well known. Also, less well-known knowledge of the professional literature and are some of the practicalities and pragmatics of doing developments in the field of expertise

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 this work in an ethical, responsible and helpful manner. child sexual abuse by a family member). An individual’s Therefore, some attention will be given to issues that true expertise is likely limited and sets this individual or inform conducting work of this nature in a responsible, individuals apart from others with expertise in associate ethical and neutral fashion. This is particularly essential or disparate fields. because these two roles have an unfortunate history of The Child Custody Evaluator being occupied by some professionals whose work may best be characterized as “hired guns”. The taint left on Amongst the three expert roles discussed in this paper, these roles by practitioners whose approach to the work only the child custody evaluator is a “true neutral”. This revealed broad bias and ethical flaws need not color the is because the child custody evaluator is retained by immense usefulness of these roles going forward. the Court to serve as the Court’s own expert. Only the evaluator is tasked with directly advising the Court as What Makes a Child Custody Expert? to the “ultimate issue,” that is, a parenting plan that is According to Law.com, an expert is “a person who is a reasoned to be in the best interests of the minor children. specialist in a subject, often technical, who may present Only the child custody evaluator can ethically provide his/her expert opinion without having been a witness to the Court with advisory recommendations regarding the any occurrence relating to the lawsuit or criminal case. The best interests of the children. This is because, ethically, role of the expert is an exception to the rule against giving the psychologist is not permitted to offer opinions about an opinion in trial, provided that the expert is qualified individuals that the psychologist has not directly assessed by evidence of his/her expertise, training and special and evaluated. Because a child custody evaluation is, in knowledge. If the expertise is challenged, the attorney fact, a forensically informed study of a family system, for the party calling the “expert” must make the members of the system and of multiple a showing of the necessary background interrelationships between family members through questions in court, also known and factors impacting the family, it is not as voir dire, and the trial judge has Ethically, ethically permitted for a psychologist to discretion to qualify the witness offer best interest recommendations or rule he/she is not an expert or the psychologist without having the benefit of is an expert on limited subjects.” is not permitted to conducting a comprehensive whole Expertise can be construed broadly offer opinions about family evaluation. or narrowly. A child custody expert individuals that the is an individual, who by virtue of Another element setting the child training and experience, has gained psychologist has not custody evaluator apart from other specialized knowledge or expertise directly assessed and child custody experts is that the that sets this individual apart from evaluated Court, in the Court’s order, appoints others. This does not mean, however, the evaluator directly, and gives the that all child custody experts have the scope of work undertaken by the child same areas of expertise or are qualified to be custody evaluator to the evaluator. In a child custody expert in all kind of litigation. For contrast, the attorney retaining didactic and review/ example, an individual who qualifies as a child custody rebuttal experts typically determines the scope of work expert in child custody litigation would be someone given to those experts (and those experts are expected to whose expertise is specific to the needs of children when disclose the specific task directions and instructions they the issue before the Court is a parenting plan that is are given). Only the child custody evaluator has direct thought to facilitate the best interests of the child. An individual with this expertise would be versed not only access to the parents, to the minor children and to the in child development, developmental stages, normal and range of ancilliary information provided by various kinds abnormal developmental trajectories for children—but of medical, legal and educational records. The Child would also have broad expertise in family life, the impact custody evaluator also has access to other individuals, of divorce on children, the promotion of coping and known as collateral contacts, who have knowledge of resilience in children whose parents keep separate homes, the child, the family or of events/issues surrounding the issues surrounding stepfamilies and the re-marriage of a family. Because only the child custody evaluator is given parent among other areas. Thus, it should be clear that an such broad access and because only the child custody individual who qualifies to be a child custody expert in evaluator operates under explicit instruction from the one context (for example, the context of disputed custody Court, only the Child custody evaluator can express of a child between divorced parents) may or may not opinions about the “ultimate issues” in the case, that is, qualify as an expert in other matters in which a child the parenting plan that is thought to support the best custody expert’s point of view is likely to be helpful to interests of the child. the Court (for example, in cases of child maltreatment or

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 All experts offering testimony in cases where child The Didactic Expert custody is at stake should be neutral to outcome. And all Not all cases of disputed custody require the extensive experts offering testimony in cases where child custody process that is a child custody evaluation. In many cases, is being litigated would, optimally, answer the questions time restrictions may not allow such an evaluation to take asked at trial in the same manner no matter which side place. In others, the nature of issues before the Court to the dispute retained and proffered the expert. Yet— are narrow enough that a broad-based child custody the child custody evaluator is often thought as a “true study is not required. However, this does not mean that neutral”. This is because the child custody evaluator is professionals with expertise in child development do not appointed by the Court or by stipulation of the parties, have much to offer the Court and that they cannot play and is technically Court’s own expert (with the Court, an essential and critical role in assisting the Court in the of course, being neutral). The child custody evaluator Court’s determination of what is in the best interests of is a unique type of expert in child custody litigation for the child. Such experts, known as didactic or educational several reasons. First, this expert, appointed by the Court, experts, can offer useful and enlightening testimony with carries out his or her work on explicit instructions from regard to specific issues and phenomena in cases. the Court. Whereas other experts’ scope of responsibility is determined by the retaining attorney in consultation Child custody cases are often complex and the issues at with the expert, the evaluator’s scope and range of hand can be nuanced and subtle, adding to the complexity responsibilities are specifically determined by the Court. of the case. Typical issues in cases that can be illuminated Next, jurisdiction-specific rules and statutes, along with through the use of didactic testimony include areas such best practice standards and guidelines promulgated as family violence, child abuse, substance use/abuse, by appropriate professional organizations, child maltreatment and abuse, relocation govern the evaluator’s work. Finally, matters, resistance/refusal dynamics and the child custody evaluator provides mental health/illness amongst others. the Court with recommendations that are formulated based on the Commonly, the didactic or data gathered that propose a educational expert is not court child sharing plan, custodial appointed but is, instead, a party- All experts offering retained and compensated expert arrangement and other provisions testimony in cases where (such as psychotherapy, anger proffered by one side in the management, restrictions on child custody is at stake litigation and compensated by parental contact) that in the should be neutral to outcome that side. This kind of expert is opinion of the child custody retained for purposes of providing evaluator optimize the best didactic testimony at trial by one interests of the subject child(ren). side in a dispute when that side Unless a child custody expert has believes that additional high-level, met with all members of the family, specialized and technical information objectively evaluated and assessed them, that is thought not to be in the general and has enough information upon which to base information bank of the trier of fact (the Court) best interest recommendations, it is outside the dictates would be of assistance to the trier of fact in formulating of professional ethics to provide the Court with advisory their opinions and best interest orders in the case. For recommendations. Because only the child custody example, in the United States, Federal Rule of Evidence evaluator, having been tasked by the Court, is in a position 702 provides to undertake such a comprehensive assessment, only the A witness who is qualified as an expert by knowledge, child custody evaluator offers recommendations. All skill, experience, training, or education may testify in the other child custody experts, as valuable, experienced and form of an opinion or otherwise if: wise as they may be, must stop short of offering the Court advisory recommendations. (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the Although the training and qualification of Child custody evidence or to determine a fact in issue; evaluators varies from jurisdiction to jurisdiction, the Model Standards of Practice for Child Custody (b) The testimony is based on sufficient facts or data Evaluations, promulgated by the Association of Family (c) The testimony is the product of reliable principles and Conciliation Courts, sets forth best practice guidelines and methods; and for the training of Child custody evaluators as well as the ways in which these forensically informed investigative (d) The expert has reliably applied the principles and studies are best carried out. methods to the facts of the case.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Of course, whenever there is a witness who is retained litigation has become commonplace, especially in hotly by one side to the dispute and who is also compensated contested matters in which the litigants are able to afford by this side to the dispute, there are concerns about the such experts. integrity, veracity and objectivity of that expert. Needless to say, the didactic expert has a tall order to meet, in terms The fundamental job for the review expert is to objectively of overcoming the perception of being an individual evaluate the work product of the Court’s neutral expert, whose opinion is “bought and paid for”. This is an area the child custody evaluator. The review expert will in which the psychologist must practice to the highest assess and opine on numerous aspects of the evaluator’s ethical standards. For example, no matter who retains the work product, basing these opinions on a comprehensive services of the psychologist and who pays the psychologist review of the written report, and potentially the for their time, the psychologist is ethically required to evaluator’s underlying record and the expert’s utilization represent to the Court their opinions irrespective of of forensic procedure, appropriate interview methods, which side has retained and paid them. Put another data gathering, and inference-making as revealed in way, one should be unable to tell which party to a dispute the evaluator’s work product. The review expert also retained and paid the psychologist based on the contents considers the relationship between the data gathered of the answers to questions the psychologist is asked. by the evaluator and the recommendations made – the Principle C of the Ethical Principles of Psychologists “logical nexus”. and Code of Conduct of the American Psychological In addition to evaluating recommendations for a Association states, in pertinent part, “Psychologists seek logical nexus between the data gathered and the to promote accuracy, honesty and truthfulness in the recommendations made, the recommendations are science, teaching and practices of psychology.” also considered in view of developmental Thus, it is the job of the psychologist to considerations for the children or special be honest, to be truthful, to be clear needs for the children. The review and not to behave in deceptive or expert is likely to approximate a misleading ways no matter their picture of the evaluator’s approach role, the amount of compensation The fundamental job to the evaluation and the received or the source of their for the review expert is to procedures used in conducting the compensation. If the psychologist evaluation to ascertain whether offering didactic testimony in a objectively evaluate the work appropriate forensic methods proceeding involving contested product of the Court’s neutral and techniques of data gathering custody remains faithful to expert, the child custody in inference-making were used his or her ethical obligations evaluator. in carrying out the evaluation. and requirements, one can have In addition, the professional and increased trust and confidence that ethical reviewing expert will also the opinions of the psychologist are develop an understanding for the arrived at absent biases that might be strengths and assets of the work product. introduced by a desire to help the side Finally, the review expert will be alert to retaining and paying them to prevail in the indicators of potential bias in the work product. litigation. This, in turn, increases the Courts’ confidence in the objectivity and helpfulness of the testimony offered More often than not, a litigant’s attorney will retain the by the didactic expert. services of a review expert in those cases where the child custody evaluator’s recommendations are seen as favoring The Review Expert the other parent. Because of this, it is understandable that The role of the review expert in child custody litigation review experts are sometimes viewed with skepticism has received increasing attention in the professional and as experts “on a mission” rather than experts who literature and is a professional role that has taken on approach their work with the same neutral, objective and increasing attention and prominence in child custody balanced point of view that one would expect of other litigation. This child custody expert role may be the most experts. The reputation of some review experts as “hired nuanced and complex role for child custody experts in guns” may be well earned. However, it is also important to cases of contested custody. The increasing use of review recognize that the process ethical review experts employ experts in child custody litigation was in part responsible is one in which a comprehensive sense of both strengths for the establishing of a task force by the Association of and weaknesses of reviewed work products is presented Family and Conciliation Courts in 2009 to look at the role to the retaining attorney. Therefore, only after learning of of mental health consultants in child custody litigation. the review expert’s opinions, the retaining attorney may While the role of reviewing expert is not without choose to designate that expert to testify at trial. In other controversy, the use of review experts in child custody words, there is a selection process whereby the review

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 expert’s supportive review of a work product viewed expert) and also offer “behind the scenes” advice, counsel as adverse by the retaining attorney is likely not to be and consultation with the attorneys. Dale and Gould known because that attorney is quite unlikely to actually (2014) argue that bright line prohibitions against one child take the testimony of a review expert whose opinions custody expert occupying both of these roles are unwise. are not supportive of their clients’ ultimate goals and They assert that these two roles are not incompatible objectives. It is only after the review experts complete and that “The different kinds of assistance attorneys can their objective/neutral review of a work product that receive from mental health experts can be tailored to the the retaining attorney may choose to actually designate needs of the case”. Others such as Stahl and Simon (2013), that expert as a witness. Therefore, the existence of a and Martindale (2007) argue that a bright line does exist positive review of a work product viewed as adverse by and should be observed for various reasons including an attorney may never be known. maintaining objectivity and discovery issues. Although the purpose of this article is other than examining the specific It is essential that the presentation of the strengths and pros and cons of this issue, it is important to highlight weaknesses of the court-appointed child custody evaluator’s the presence of this debate. The reader is encouraged to work product be presented to the retaining attorney in a delve into the issues in this debate more thoroughly when candid, straightforward and comprehensive manner. Not considering retaining a reviewing expert. only is this an indication of a skilled, professional and ethical review expert, this is also the kind of objectivity that is Who Is The Client? ethically required of professional psychologists. It is essential that the child custody expert be very clear While the immediate goal of the retaining attorney, on who the client is. This is a critical element of the when hiring a review expert, may be to practice of any type of professional psychology. undermine and impeach the report and Psychologists have certain duties to their recommendations offered in a child client, and the establishment of a positive custody evaluation, the overarching psychologist-client relationship purpose of review experts is the Advisory reports facilitates best practice for the establishment and maintenance of carry great influence psychologist. Like any professional psychologist, psychologists a system of checks and balances with Courts and the of the quality of and integrity working as child custody experts of child custody evaluations in recommendations that flow must clearly identify their client. general. Stated differently, to from the work of the Court’s Most psychologists, trained in the extent that it becomes routine expert often guide the the clinical model, think of the or customary that child custody term “client” as synonymous with findings and orders of the the recipient of psychotherapeutic evaluations are subject to scrutiny Court. and objective review, it becomes more services. In transferring this likely that child custody evaluators understanding to the child custody will utilize evaluation processes and expert, they may identify the client as procedures that are more likely to result in the litigant. When undertaking the work of unbiased, objective and unbiased analyses of the a court-ordered child custody evaluation, most best interests of children. evaluators would agree that the psychologist’s client is the Court. However, for the child custody expert working Child custody evaluation reports are advisory reports in a didactic role or a review role, this is not the case. to the Court. Advisory reports carry great influence with Courts and the recommendations that flow from The Court, as previously stated, appoints the child the work of the Court’s expert often guide the findings custody evaluator, and this child custody expert becomes and orders of the Court. Child custody evaluations are the Court’s eyes and ears. This expert takes their direction extraordinarily complex works with many components and scope of services directly from the Court and they and moving parts. Therefore, due process and maximizing are accountable to the Court. Therefore, the Court is outcomes that benefit children demand that review work the client of the child custody expert serving as a child be welcomed by the Court as long as the review is work custody evaluator. be done with the same rigor and forensic orientation that Who is the client for the didactic child custody expert one hopes to see in the child custody evaluation itself. and the child custody expert who provides review Among those conducting reviews, there exists some services? In these roles, it is the retaining attorney who disagreement as to whether it is acceptable for the same is the client. In these roles, psychologist is hired by and, child custody expert to testify as to the strengths and therefore, responsible to the attorney who retains those weaknesses of a child custody evaluation (the testifying services. Some child custody experts confuse the litigant

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 represented by the retaining attorney with their client. expert views the client as the litigant (a circumstance we Yes, the expert may have interaction with the attorney’s strongly advise against) taking direction from the litigant client (the litigant), even extensive interaction in some can lead to bias and the perception of bias. It can also cases, but the consulting psychologist takes direction quite readily lead to testifying situations in which the from and is responsible to the retaining attorney. The expert may be appropriately asked to opine with regard retaining attorney’s client, i.e. the litigant parent, is not to perceptions about the litigant. the consultant’s client. The psychologist is working for the To summarize, when providing a neutral forensic attorney. Some see this distinction as focusing on minutia evaluation such as a child custody evaluation, the and as unreasonably picky, but this distinction is critical. psychologist’s client is the Court. When engaged in When in the role of a behind-the-scenes consultant, an expert witness role, either as a didactic expert or working for the attorney rather than the attorneys’ client review expert, the attorney, and not the litigant parent, extends to the forensic psychology consultant the benefits is the client. of the attorney-client work product privilege and/or the trial preparation privilege since the consultant is working The Bottom Line with and for the attorney. In so doing, that work product is protected. When one is in the role of an expert witness, Child custody experts perform vital and essential the fact that the witness is employed by the attorney and functions in matters of litigated custody of children. not the litigant helps the witness overcome the perception Child custody experts bring to child custody disputes of being an advocate for the litigant and protects the highly developed and specialized knowledge and witness from interactions with the litigant that can harm expertise in the domains of child development, family the testimony or compromise the litigant’s case. life, the impact of conflict on children, developmental Attorneys and experts are advised to be clear about the norms and patterns and expertise in specific areas such locus of the expert/client relationship. We know that for as family violence that cannot be expected of even the the attorney, the client is the litigant in the child custody most seasoned and wizened judicial officer. Therefore, dispute. However, for the expert, as described above, it is realizing the importance of the issues before them and the the attorney who is the expert’s client. The critical element weight of the critical decisions they must make about the in this distinction has to do with the issue of to whom the lives of the children whose parents are litigating, judicial expert is responsible and accountable. It is a best practice officers turn to, lean on and appreciate input, information for the expert to be responsible and accountable to the and education from those with specific expertise with retaining attorney and to take direction from the attorney, regard to children. not the litigant. There are critical reasons for this. First, it is wise for the testifying expert, in particular, to avoid A commonality amongst the roles and functions that contact with the litigant unless the litigant’s attorney child custody experts play in cases is that these experts, is also present. Even when the litigant’s attorney (the as licensed mental health professionals, owe fidelity to expert’s client) is present, it is important that all present their ethical principles and code of conduct that, when recognize that anything and everything discussed is adhered to, help assure that the input of the child custody subject to full discovery and disclosure. Indeed, specific expert is unbiased, neutral, objective and, ultimately, advise informed consent is advised when expert/litigant helpful to the Court. conversations take place. Under circumstances where the

Robert A. Simon, Ph. D. is an internationally recognized leader in forensic psychology consulting. Based in San Diego, CA and Maui, HI, Dr. Simon is retained by attorneys throughout the country to consult on custody cases and provide expert witness testimony. Dr. Simon is a member of the Board of Directors of the Association of Family & Conciliation Courts , the Board of Directors of the National Council of Juvenile and Family Court Judges and the Board of Directors of the World Congress for Family Law and Children’s Rights. In addition, he serves on the editorial board of the Family Court Review. He is an immediate past member of the Committee on Professional Conduct and Responsibility of the California Bar Association, a member of the Executive Committee of the California Bar Court and formerly a senior member of the Ethics Committee of the California Psychological Association. He was invited by the Family Court of Australia and the Federal Circuit Court of Australia to be a lead trainer in their 2016 national conference of the court’s Family Consultants. He is the co-author of the book “Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation and Expert Testimony”. Dr. Simon has also published articles in scholarly journals and is a regular contributor to the Section of Family Law Newsletter published by the ABA. He lectures extensively on both a national and an international basis.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 References

1. Gross, S. R., & Mooching, J. L. (2003). Expert 6. For example, see provision 9.01 of the 9. http://www.uscourts.gov/sites/default/files/ information and expert evidence: A preliminary American Psychological Association’s Ethical Rules%20of%20Evidence taxonomy. Seton Hall L. Rev., 34, 141. Principles and of Psychologists and Code of Conduct, http://www.apa.org/ethics/code/ 10. ‘Deutsch, R and Fee, W. (2011). Mental health 2. Stahl, P. & Simon, R. (2013). Forensic Psychol- consultants and child custody evaluations: A ogy Consulting in Family Custody Litigation. 7. Martindale, D. A., Martin, L., Austin, W. G., discussion paper. Family Court Review, 4(49), American Bar Association. Chicago, IL. Drozd, L., Gould‐Saltman, D., Kirkpatrick, H. 723-736. D., ... & Siegel, J. (2007). Model standards of 3. See, for example, provision 9.01 of the Ethical practice for child custody evaluation. Family 11. Dale, M. D., & Gould, J. W. (2014). Science, Principles of Psychologist and Code of Con- Court Review, 45(1), 70-91. mental health consultants, and attorney-ex- duct, promulgated by the American Psycho- pert relationships in child custody. Family Law logical Association. http://www.apa.org/ethics/ 8. It is noted that while experienced judicial Quarterly, 48(1), 1-34 code/ officers have typically been exposed to a wide variety of high level information and knowledge 12. Martindale, D. A. (2007). Forensic consultation 4. In other words, the expert witness is objective from fields apart from the law, itself, fields such in litigated custody disputes. The Journal of and not invested in outcome of the case no as psychology and child development are Psychiatry & Law, 35(3), 281-298. matter who retained them. evolving and progressing fields in which new research and new information is developed 5. See, for example, the Model Standards for on an ongoing basis. Therefore, providing the Child Custody Evaluations, promulgated by court with expert didactic testimony can be the Association of Family and Conciliation extremely helpful to the Court and should not Courts, the Forensic Specialty Guidelines for be mistaken for a litigation strategy that implies Psychologists, promulgated by the American diminished respect or esteem for the Court’s Psychological Association and the xxxx from knowledge, authority or expertise. Singapore….

FRIDAY, TH AFCC-NY DECEMBER 14 Association of Family and Conciliation Courts 2018 NEW YORK CHAPTER ALL DAY EVENT! NEW YORK CITY BAR ASSOCIATION with AAML 42 W 44TH ST American Academy of Matrimonial Lawyers NEW YORK, NY 10036 NEW YORK CHAPTER (CLE & CE CREDITS PENDING)

PRESENTING WILLIAM G. AUSTIN, Ph.D. on Relocation, Child Custody Evaluation and Parental Gatekeeping: Forensic Models and Practical Applications and Afternoon Breakout Groups

AFCCNY.ORG

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Weisberger v. Weisberger Best Interest, Personal Rights, Parents’ Contractual Rights in the Raising of Children Under a Defined Religion by Martin Friedlander, Esq.

The original conceptual basis for this article was Muslim, and Mormon parents. Parents may choose published in the New York Law Journal on January 10, to exercise their first amendment right as it relates to 2018. The current article will address an issue that arises religious freedom. Their choices may directly contradict on a regular basis and specifically in the following fact the religious way of life taught to the children in the pattern: a family is being raised adhering to certain schools which both parents agreed they would attend. religious principles, but then one of the parents decides The circumstances which generally lead to these conflicts that he or she no longer wants to continue in the are cases in which the parties have a shared past history observance. The case at hand is one that transpired in of religious observance or the parties contractually the State of New York. Although the issue takes place obligated themselves to an agreement to maintain throughout the country, the outcome and analysis or each religious observance in their children’s upbringing. It case will depend on how each jurisdiction weights the also may apply to the parties’ country of origin and the religious observance of the parties as it relates cultural upbringing acquired. to custody matters. In Weisberger, the Stipulation provided In August 2017 in the case of Weisberger The for “the Hassidic upbringing.” The v. Weisberger, the New York Appellate question to be opinion indicates that there were no Division Second Department addressed is whether specific terms to define “Hassidic modified the religious observance a contract is enforceable upbringing.” The Court cites Lee v. provision arising out of the parties’ if it obligates a person Weissman, and Lawrence v. Texas Stipulation of Settlement. The to religious conduct to indicate that a Court cannot decision was initiated by a motion enforce religious observance on an to the Kings County Supreme Court: required by the school individual but does not address the Both parties moved for a change to the children case when the parties agree to abide the custody and visitation provision of attend. by said terms. the parties’ underlying agreement. This The question to be addressed is whether a article reviews the decision in the broader contract is enforceable if it obligates a person to legal context. religious conduct required by the school the children In Weisberger, the father moved for the enforcement of attend. Do such requirements interfere with an the religious terms of the Stipulation, which provided individual’s religious freedoms? “that the parents would give a Hassidic upbringing to Contracts are enforceable, yet at the same time, the the children”. circumstances of an individual’s life may change. But if A review of the facts indicates that, at the beginning of that individual contractually obligated himself or herself the post Stipulation period, the Father was not deeply to observe a certain religious conduct in the presence of involved in the children’s upbringing, nor did he exercise the children during the period of time that the child is his rights to parental access. The Father moves for an unemancipated, do the individual’s rights trump his or enforcement of the provisions of the Stipulation only her legal contractually obligations? after the Mother openly changed her lifestyle. Missing In other words, can one contractually obligate himself or from the decision was the weight assigned to the forensic herself to religious conduct with religious implications evaluation that was conducted. required by the children’s school or lifestyle (as agreed Conflicts of this nature arise in many cases, in communities by the parties jointly in the past), even if that contractual on the full spectrum of Orthodox Judaism, as well as obligation interferes with one’s individual rights? being relevant in cases of religiously observant Christian, Furthermore, is it possible for a person to waive his or

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 her constitutional rights? The establishment clause of of observance? Given that change would interfere with the U.S. constitution deals with the legality of imposing the religious teachings that the child is being taught in religious observance,but does not address the case school, would it be considered in the child’s best interest when an individual has contractually waived those to be exposed to a contradictory lifestyle? Although an rights. Further, it does not address cases where there individual’s personal and religious beliefs cannot be is an agreement. The Appellate Court in Illinois in the regulated by the Court, the case to be made for requiring matter of Schneider v. Schneider, in which a religious compliance is not similar to the case of Lawrence v. divorce (Get) was ordered, stated that it did not violate Texas, where the public was subjected to listening to a the husband’s constitutional rights. “The order ha[d] religious speech. [a] secular purpose of enforcing a contract between the Rather, in the case at bar, and many cases before the parties.” Id. The Court based its decision on the parties’ Court, the stipulation calls for the children to maintain a marriage contract. Similarly, in cases such as Weisberger, determined mode of observance. If one parent’s conduct if the parties enter into an enforceable contract, should it contradicts the school policies or religious upbringing be enforced and should it not be held in violation of one’s of the children, and conflicts with the teachings that constitutional rights? have been observed to date, one would question how it The Appellate Division, First Department in the case of could be in the best interest to allow the parent to subject Pearlstein, indicated that parents may contract to have a young child or teenager to a conflict between his or their children brought up in compliance with a certain her way of life and a parent’s alternative lifestyle. For religious lifestyle. Tthis has been established in the State example, this might include watching movies or a mode (See Weinberger v. Van Hessen and Kananack). We of dress in clear contradiction to the schooling and also know that religious observance was a tradition which is the child’s way of life. factor taken into consideration in awarding An obvious conflict arises when the custody in the similar case of Friedwertzer, agreement calls for a clause in which in which “the best interest” standard the stipulation neither party shall disparage the other. was the preeminent factor. calls for the children The child attends a parochial school, The Appellate Division in Weisberger to maintain a be it a Yeshiva, Catholic, or Muslim indicated that in the event that either determined mode of school whose teachings mandate that parent changes his or her lifestyle, observance. alternative lifestyles are not accepted by the fact that the contract provided his or her religion. In that case, how would that the parents “shall be free from the non-disparage clause be honored? interference, authority and control directly While the separation of church and state is or indirectly from the other” affirms that the paramount, it must be viewed in the context of parent’s right to change his or her lifestyle trumps circumstances in which parents have voluntarily entered the contractual agreement they had made. If that clause into a contract that requires the children to be brought was not in the agreement, would the decision have been up in a mode of religious observance which imposes different in light of the fact that the only term referred to requirements on the conduct of the parents. The role of was “Hassidic lifestyle”? the Court is to adjudicate the enforcement of the contract. Practitioners must seriously examine the precise A forensic evaluation that utilizes a best interest analysis definitions that are utilized in a stipulation of settlement. must also give weight to the issue of the enforcement of In connection withconsidering the best interest standard the contract. The question of how the Court in a litigated of the children: if a child was brought up in a certain matter weighs such factors in making and finalizing lifestyle and both parents have agreed to raise the child a decision would depend on the jurisdiction. The in compliance with that lifestyle, what happens when psychological analysis is the same, but the legal analysis one parent changes their beliefs and level will be left for another article.

Martin E. Friedlander, Esq. is an experienced family attorney with over twenty-five years of experience. He is the principal of Martin Friedlander, PC., a boutique law firm in New York City, which specializes in all aspects of family and matrimonial law and handling complex custody hearings.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Parenting Coordination: The Genesis and Development of the Field by Matthew Sullivan, PhD.

I’ve been involved in doing, training and writing about and Conciliation Courts (AFCC) annual in 1994. There Parenting Coordination (PC) for the last 20 years. The were four professionals in attendance then. Since that role was first developed in Northern California in a time, Parenting Coordination has expanded to most couple of jurisdictions, one where I practice, so I had states and provinces in North America, with legislation the opportunity to be part of the emergence of PC to support the role in most jurisdictions. PC is gaining practice. A particular judge was exasperated in seeing a foothold in Europe (Italy and Sweden, in particular), the” frequent filers” in her Court several times a year, Hong Kong and more recently, Singapore. Trainings and post-judgment (when a Court-ordered parenting plan workshops, sponsored by the AFCC and other family law was already in place) for disputes about holidays, organizations take place throughout the year and there children’s activities, transitions, clothing, and even is a growing body of literature about the practice and disagreements about the family pet. She convened outcomes. AFCC and the APA have published guidelines an interdisciplinary group with an appeal for PC practice (AFCC, 2006; APA, 2012) and the to create an alternative dispute AFCC is currently updating their initial resolution process that would guidelines to respond to the evolution address ongoing disputes that of the role that last 15 years. consumed disproportionate Court resources to address. In an article in the Journal Parenting Coordination of Child Custody, “Co- was born in my County The PC monitors and enforces parenting and the Parenting and, in the next few years, compliance to make sure that Coordination Process cases in which parenting information sharing and other (2008)”, I provided an coordinators were utilized necessary transactions adhere to understanding of high- (by agreement only in these rules. conflict co-parents (roughly California) burgeoned 15% of co-parents in shared beyond the availability of custody arrangements) that competent mental health and suggested the basic goal of legal professionals to meet the Parenting Coordination is in need. In the mid 1990s, a local these cases. Since the Parenting psychologist, Terry Johnston, did an Coordinator becomes the link between effectiveness study which measured the co-parents, the PC can construct a parallel number of Court appearances the year before a PC model of co-parenting that manages and minimizes appointment and the year after, and found a six-fold interparental conflict. Since interparental conflict is decrease in appearances in Court after a PC was on toxic to children, the children benefit by the process the case (a six time reduction per case the year prior, the PC guides to structurally disengage co-parents. and once in five cases the year after). The judge and her fellow bench officers were ecstatic and Parenting A parallel parenting model in shared custody Coordination was launched. arrangements starts with a very detailed parenting plan, which reduces the need for engagement about I made a presentation on this new role together most areas of potential dispute, most importantly, with Christine Coates, an attorney doing PC work timeshare schedules (regular, holiday and vacation). in Boulder, Colorado at the Association of Family It provides protocols to deal with most transactions

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 co-parents need to engage in to raise their children Appropriate Case referral: Parenting Coordination (health care management, contact between the non- should only be utilized when there is a parenting plan custodial parent and child(ren), right of first refusal ordered. It is not a role designed to create parenting to provide care, etc.). Assuming co-parents have a plans, but to address disputes that arise (interpretation, detailed parenting plan, the appointment of a PC clarification, monitoring, minor revisions) as high further disengages co-parents by structuring and conflict co-parents attempt to implement their monitoring communication. parenting plan. Significant custody issues such as major and permanent changes in parenting time, relocation Virtually all co-parenting communication is of a parent, and school placement issues, should be conducted through email (or on a web-based shared handled by other dispute resolution processes and fall parenting site) with expected rules of engagement outside the scope of the PC role. (businesslike, child-focused and respectful). The PC monitors and enforces compliance to Authority: Parenting Coordination is make sure that information sharing the most intensive co-parenting and other necessary transactions intervention available in the adhere to these rules. When family court context. It is more extensive co-parenting most effective when the PC engagement is necessary The Court is ill-equipped has authority delegated because of disputes that to monitor compliance with by the Court to make arise in implementation treatment, assess progress, immediately binding orders of the parenting plan coordinate care among treatment about issues specifically (calendaring vacations and providers and assess and determine defined as within their holidays, alleged violations if and when parenting time should scope of authority in their of the plan etc.) or when be modified. appointment order. If the PC child-related issues arise has no Court authority or can (mental health, education, only recommend a resolution activities, etc.) highly structured to a particular dispute, the role meetings (often by phone or video is often ineffective as (1) issue conference) are conducted by the PC submitted are time sensitive ( e.g., to attempt to resolve issues. The aim is a child’s involvement in a team sports to achieve agreement, or if necessary to “hear” the activity) and (2) the burden of implementing the issue and provide an order to resolve the dispute. The recommendation in a Court order is on the parent ability to control and limit the engagement of high who agrees with the PC’s recommendation. conflict co-parents and efficiently resolve disputes provide the “peacekeeping” function in high-conflict Case Management: This aspect of the function of the shared custody. Though the work is rarely directly appointed PC is critical in many cases. The PC is involved with the child(ren) in the family, the benefits of this in the ongoing management of interventions that are co-parenting work make the PC role invaluable to ordered by the Court to address issues such as substance buffer children from the deleterious impact of co- abuse, mental health issues, domestic violence, child parenting conflict. abuse and alienation. Common to these issues is that parenting time is typically restricted for one parent, with In my research on PC practice and involvement on increases in timeshare for the identified problem parent the original guidelines (AFCC, 2006) and current tied to effective intervention. The Court is ill-equipped update of the AFCC PC guidelines (in process), I’ve to monitor compliance with treatment, assess progress, learned that there is tremendous variability in PC coordinate care among treatment providers and assess practice across and within jurisdictions. I’d like to and determine if and when parenting time should be provide what I consider a few essential elements and modified. PCs have the skill-set, access to all parts of the recommendations to support PC practice. system both within and surrounding the family and the

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 authority to effectively respected colleague) manage these complex The Court is ill-equipped to monitor is critical to being shared custody scenarios. compliance with treatment, assess effective, managing case progress, coordinate care among dilemmas, and avoiding Professional Risk treatment providers and assess burn-out. Management: The PC and determine if and when role is “risky business.” parenting time should (c) Maximizing your Complaints to the Court, to be modified. professional liability insurance. regulatory agencies (the state bar, Complaints go with the territory the state licensing board for mental in this practice. It will be emotionally health professionals, the American stressful to deal with disgruntled clients Psychological Association) and civil suits are on the who complain, so make sure it’s not financially costly. rise as this role expands. I suggest you consider the following steps to manage professional risk if you (d) Being cautious in accepting cases. Referrals from work in this role: collaborative and respected attorneys are great because they will continue to be part of your team with (a) Insist on a formal Court appointment, rather than a predictably difficult parents. Since cases are demanding private consent agreement before getting involved in and unpredictable in terms of the time required to a case as a PC. Include provisions in the appointment manage them, don’t have your PC casework exceed order that address the scope of your authority, half of your overall caseload. Managing cases requires your immunity from civil law suits (in California the ability to respond in a timely manner (though a the Parenting Coordinator is an officer of the Court client’s emergency based on poor planning does not and has quasi-judicial immunity from law suits), mean that the PC must consider it an emergency). It is allocation and payment of fees (including working important to keep cases under control. only from a retainer), and procedures for addressing both the Court’s review of objections to orders you (e) Knowing when to “fold-em.” Withdrawing from may issue and grievances about your conduct. a case may be the best professional risk management decision. It may still be the right decision, even when (b) Gain training in PC work and maintain competence. it may reinforce the bad behavior of a parent who Parenting Coordination is still an emerging role in is clearly engaging in behavior to encourage you the family courts. It is a highly specialized legal and to withdraw. I have never regretted withdrawing psychological hybrid which requires knowledge from a case after I had taken that action. of legal procedure, alternative dispute resolution (mediation, settlement, documentation, arbitration) My website (sullydoc.com) and the Association of and knowledge of multiple psychological domains Family and Conciliation Courts website (afccnet.org) (child development, intimate partner violence, has many resources for professionals about Parenting alienation and estrangement, etc.). Having readily Coordination practice. available consultation (a professional group or

Matthew J. Sullivan, Ph. D. has been in private practice in Palo Alto, California, specializing in forensic and clinical work in the Family Courts for 30 years. He is the author of numerous peer-reviewed articles, book chapters and books on topics related to work in high conflict shared custody situations. He is a pioneer in the development of Parenting Coordination role internationally.

He is President-Elect of the Association of Family and Conciliation Courts (AFCC). He currently serves on the American Psychological Association Ethics committee. He is the co-founder of Overcoming Barriers, inc., which is a non-profit organization that has developed a variety of innovative programs for high conflict shared custody arrangements. Dr. Sullivan received the 2012 Joseph Drown award for outstanding service to children by the Association of Family and Conciliation Courts, California chapter.

For more information his website is sullydoc.com

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Joint versus Sole Physical Custody: better outcomes on other measures in four studies, and equal outcomes on all measures in one study. In What does the research tell us about two studies JPC children had worse scores than SPC children’s outcomes? children on one of the tests measuring well-being.

What about parent conflict? When conflict was high, did children still fare better? Yes. In these 19 studies, © Linda Nielsen, 2018. JPC children still had better outcomes on all measures in nine studies, equal outcomes on some and better Do children fare better in joint physical custody (JPC), outcomes on other measures in five studies, and equal where they live with each parent at least 35% of the outcomes on all measures in two studies. In three time, than in sole physical custody (SPC), where they studies JPC children had worse outcomes than SPC live primarily or exclusively with one parent? Based children on one of the measures. on the 60 studies that have compared outcomes for JPC and SPC children, JPC children have The fact that JPC children still had better the advantage in terms of better scores outcomes even after factoring in parent on a variety of standardized tests conflict undermines the claim that that the researchers used to children do not benefit from measure different aspects of JPC unless their parents have children’s well-being. Among Did JPC children a low conflict, cooperative the aspects of well-being have better outcomes relationship where they both “voluntarily” and freely that were measured in these because they had better studies were: emotional agreed to JPC from the outset. and psychological health relationships with In fact, in an analysis of the 19 (i.e. depression, anxiety, their parents studies that directly compared JPC and SPC parents’ levels self-esteem), behavior or to begin with? social problems (i.e. drinking, of conflict and co-parenting, aggression, school misbehavior), JPC couples did not have physical health (i.e. headaches, sleep significantly less conflict or notably problems) and quality of relationships more cooperative co-parenting than with parents, grandparents or stepparents. SPC couples at the time they separated Detailed summaries of these 60 studies are available in or in the years following separation.3 In these my two papers cited at the end of this article. 1, 2 studies, conflict and co-parenting were measured with various types of standardized tests or with specific Based on their scores on the various measures of well- questions about conflict and cooperation presented being mentioned above, compared to SPC children, by the researchers. Moreover, seven studies asked JPC JPC children had significantly better outcomes on all parents whether they had both initially agreed to the measures in 34 studies; equal outcomes on some and plan, or if one of them had been “forced” or “coerced” better outcomes on other measures in 14 studies; and into accepting JPC. From 30% to 80% of JPC couples equal outcomes on all measures in six studies. In the did not initially agree to share. Yet in all seven studies, other six studies JPC children had worse outcomes on JPC children had better outcomes than SPC children. one of the measures of well-being, but equal or better outcomes on all others. In short, JPC trumped SPC. Did JPC children have better outcomes because they had better relationships with their parents to begin Did JPC children still have better outcomes when the with? Did their parents have better parenting skills researchers considered family income? Yes. In these that SPC parents? Either of these two variables, or a 25 studies, JPC children had better outcomes on all combination of both, could account for better outcomes measures in 18 studies, equal outcomes on some and regardless of the custody arrangement. Only 9 of the 60 studies tested this possibility. JPC children had better

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 scores on all tests measuring various aspects of well- likely than boys in SPC to say they “sometimes did not being in five studies, equal on some and better on other get along well with peers”—but the reverse was true outcomes in two studies, and worse outcomes on one for girls. (2) In high conflict families, those teenagers measure in two studies. Based on this small number who gave one parent a poor rating on “positive” of studies, we cannot draw strong conclusions. But in parenting (setting and enforcing rules consistently, these studies, the quality of the pre-existing parent- being supportive, providing adequate supervision) child relationship or parenting skills did not account had more behavioral and emotional problems than for JPC children’s better outcomes. SPC teens. (3) Teenagers who had bad relationships with their fathers were more depressed and more Looking more closely at the outcomes, dissatisfied in JPC. (4) For teenagers whose several findings are noteworthy. No parents were still in high conflict study found worse outcomes for 8 years after their divorce, girls JPC children on all, or even on were more depressed, but boys most, measures of well-being. were less depressed, in JPC. (5) The greatest advantage was Teenagers who were highly better family relationships. Did JPC children have better “conscientious” (extremely In 22 of 23 studies, JPC outcomes because they had rule oriented, orderly and children had closer, more better relationships with their planful) were more depressed communicative relationships parents to begin with? in JPC, but the more laid back with their parents. JPC (less conscientious) teenagers children also had fewer stress were less depressed in JPC related health problems in 13 of than in SPC. (6) For infants and 15 studies. And they had better toddlers with impoverished, never emotional and psychological health married, minority parents with high (depression, anxiety, self-esteem, life rates of incarceration, physical abuse, satisfaction) in 24 of the 42 studies. In 12 drug use, and mental health problems, JPC studies, the two groups were equal and in six studies toddlers had more insecure attachment scores to their the results depended on the child’s gender and which mothers than did SPC toddlers. measure of emotional well-being was being assessed. No Woozling Allowed As for teenage behavioral problems (drinking, smoking, using drugs, being aggressive, bullying), Woozling is the process in which research findings are in 21 of 24 studies JPC teenagers had fewer problems manipulated and distorted in order to support just one than SPC teenagers. In the other 3 studies, the results point of view—either by exaggerating or reporting were “mixed” depending on the child’s gender or only part of the data, or by excluding certain studies, which behavior was being assessed. or by interpreting ambiguous data in only one way.5 To avoid woozling of the 60 studies, I want to clarify What about children’s relationships with their several points grandparents—and why should we care? In all four studies that addressed this question, JPC children had closer relationships with their grandparents than SPC First, the 60 studies have limitations, as do all social children. This result matters because children who science studies. The studies are correlational so they have close relationships with their grandparents after cannot prove that JPC caused the better outcomes. On their parents separate tend to have fewer emotional the other hand, a number of studies ruled out conflict, and behavioral problems. income and quality of parent-children relationships as possible influences—which lends stronger support In six of the 60 studies, however, JPC children had to the argument that JPC in and of itself is beneficial worse scores than SPC children on one of the measures for children. Moreover, according to a recent analysis of well-being. (1) Teenage boys in JPC were more

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 of those JPC studies that used the kinds of statistical consequences for children can be fatal. Then too, JPC techniques and research designs that help to establish effect sizes are much larger in certain samples or for causality, JPC is the cause of children’s better certain types of problems. For example, in a meta- outcomes.4 These research designs and statistical analysis of 20 JPC studies, effect sizes were four times analyses take into consideration more than one of the stronger for children’s behavioral problems than for variables (i.e. income, conflict, quality of co-parenting) emotional ones, five times stronger in school samples than in national samples, and five times stronger for that might influence children’s outcomes and then JPC children who lived 50% time with each parent compare JPC to SPC children. instead of 35% - 49% time.

Second, the 60 studies are not of equal quality in terms To prevent woozling, I want to emphasize that these of sample size, sophistication of the research design, or 60 studies did not conclude that JPC is beneficial for including factors other than the custody arrangement all children in all circumstances, or that constantly (i.e. income, conflict) that might influence children’s being dragged into the middle of parents’ conflicts has outcomes. But despite the differences in quality, the no negative impact on children, or that JPC has more findings across studies are consistent, which lends more impact than the quality of parent-child relationships. credibility to the “construct validity” of the results. What the studies are saying is that even when conflict is high—with the exception of the kind of physically Third, most of the 60 studies did not report effect abusive conflict that endangers children even before sizes which are statistical analyses of the strength their parents separate—and even after considering of the relationship between two or more variables. family income and the quality of parent-child So even though the difference between the JPC and relationships, children still had better outcomes in JPC SPC children is “statistically significant”, we don’t than in SPC. It is an injustice to children, and to the know how strong the link is unless the effect size is researchers who have conducted these studies to frame also measured. For those studies that did report effect the discussion as if one single factor—conflict, income, sizes, the effect was generally small. It would be a JPC, or the quality of parent-child relationships—has mistake, however, to interpret this to mean that JPC to be the sole winner in some imaginary contest or to does not matter because small effect sizes are common argue over which beneficial factor is “more” important in social science and medical science studies—and than another. Our goal should be to provide children yet these small effect sizes can have an important with as many positive situations or beneficial “factors” or far reaching impact on large numbers of people. as possible—regardless of how weak or strong those For example, if there is a statistically significant link statistically significant links may be. Based on the between JPC and teenage drug use, suicide or drunk existing research, many scholars now concur that JPC driving, but the effect size is small, we certainly is clearly one of the factors that generally contributes would not dismiss or minimize this finding since the to better outcomes for children. 6, 7

Linda Nielsen is a Professor of Education at Wake Forest University in Winston Salem, NC. She has written two textbooks on Adolescent Psychology and Father-Daughter Relationships, and has published many articles on the research on shared physical custody.

REFERENCES Articles summarizing the 60 studies and their citations are available upon request from the author: [email protected]. | [email protected] | www.wfu.edu/~nielsen

1. Nielsen L. Joint versus sole physical custody: 3. Nielsen L. Re-examining the research on parental 6. Warshak R. Social science and parenting plans Children’s outcomes independent of parent-child conflict, coparenting and custody arrangements. for young children: with the endorsement of relationships, income and conflict in 60 studies. Psychology, Public Policy and Law 2017;23:211-231. the researchers and practitioners listed in the Journal of Divorce and Remarriage 2018;59:247-281. Appendix. Psychology, Public Policy and Law 4. Braver, S. & Votruba, A. Does joint physical 2014;20:46-67. 2. Nielsen L. Joint verus Sole Physical Custody: custody cause children’s better outcomes? Journal Outcomes for children in 60 studies independent of Divorce & Remarriage, 59, 452 - 468. 7. Braver S, Lamb M. Shared parenting after parental of income and conflict. Journal of Child Custody separation: The views of 12 experts. Journal of 5. Nielsen L. Woozles: Their role in custody law 2018;15:35-54. Divorce & Remarriage 2018;59:372-387. reform, parenting plans and family court. Psychology, Public Policy and Law 2014;20:164-180.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Editor’s Corner Joint Custody: Should there be a Presumption? RESEARCH, QUESTIONS & TRENDS

by Alberto Yohananoff, Ph.D.

The impetus for the debate on joint versus sole custody is operationally defined as a child spending at least 30-35% found in the Australian law reforms of 2006, which pushed of his time with each parent.) many of the mediated and litigated cases into shared care custodial arrangements rather than primary custody (in In an article published in Family Court Review (the result Europe, Belgium is at the forefront of legislation for shared of AFCC assembling a “Think Tank” in January 2013 to parenting time as noted by Smyth, McIntosh, Emery and discuss the issue of shared parenting) Pruett & DiFonzio Higgs Howarth 2016). New legislation mandated that (2014) suggest that decision making about parenting disputing parents, lawyers, and judges must consider time following the parental separation should be case equal or near equal parenting sharing arrangements specific as there is no “one size fits all” shared parenting rather than primary custody. Therefore, a discussion of time arrangement. suggest that decision making about pros and cons of shared parenting is all the more relevant parenting time following the parental separation should today because of its increased prevalence. This article will be case specific as there is no “one size fits all” shared review the most recent literature comparing joint versus parenting time arrangement. Pruett & DiFonzio (2014) sole custody across a number of important variables further argue that social science research strongly such as age of the children, gender, education and socio- supports shared parenting (i.e., frequent, continued, economic status. The role of potentially confounding and meaningful contact by both parents with their variables will also be examined. children) when both parents can work this out.

Parenting is best understood from an But what constitutes effective shared ecological perspective in which the parenting? According to Pruett, quality of parenting is affected by Cowan, Cowan, & Diamond, (2012) personal characteristics of the parent, Joint custody and parental effective shared parenting involves the characteristics of the child (e.g., collaboration in childrearing joint parenting plans in which both temperament), interpersonal factors appears to be positively parents strive to agree on the child’s (e.g., social support) and situational needs, value contributions that the correlated with children’s other parent has to offer, and allow aspects of the environment (e.g., well-being financial stressors.) Parenting is a the children’s needs to dictate how dynamic, fluid process that is impacted conflicts get resolved. The reviewed upon by a multitude of factors within literature suggests that joint custody and outside the family. and parental collaboration in childrearing appears to be positively correlated with What constitutes good parenting? Sandler and children’s well-being (Bauserman 2002; Lamb his colleagues (Sandler, Wilchik, Winslow, Mahrer, 2012, 2016). Moran, & Weinstock 2012) identify two critical parenting Bauserman (2002) in a meta-analytic review assessing the dimensions: (a) the quality of the parent-child relationship impact of joint v. sole custody on children’s adjustments (e.g., the presence of warmth, support, encouragement concludes that children and adolescents with divorced and positive communication) and (b) the use of effective parents are likely to be better adjusted on a variety discipline (e.g., the enforcement of age appropriate rules of dimensions (e.g., measure of general & behavioral and expectations). Sandler and his colleagues (2012) adjustment such as the Child Behavior Check List (CBCL), indicate that, for non-custodial fathers in post-divorce measures of emotional adjustment such as the Child proceedings, the quantity and quality of post-divorce Depression Inventory (CDI), and measures of self-esteem involvement with the children is an additional important such as the Coopersmith Self-Esteem Inventory) when dimension to consider. their parents are engaged in a successful cooperative arrangement involving joint legal and/or physical custody. How we define shared parenting? Pruett & DiFonzio (2014) indicate that shared parenting consists of two In the early 1990s, the literature seems divided on the distinct conceptual entities: Joint decision making (legal benefits of shared versus sole custody. Some argued that custody) and shared parenting time (physical custody), shared custody was disruptive to children’s lives and

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 exposed them to ongoing parenting conflict. However, • Joint custody mothers experience less parenting today the consensus seems to be that shared parenting burden and stress connected with single motherhood. can work and positively impact the children’s well-being when parents are able to cooperate and arrangements are • Joint custody parents also report less conflict with made with the children’s needs in mind (Trinder 2010, their former spouses, although dissenting views exist McIntosh & Smith 2012, Smyth et. al. 2016). In contrast, (Trinder, 2010.) shared arrangements are more problematic and unlikely to Some authors (Pruett et. al. 2012, Pruett e. a. 2016) note yield positive outcomes in high conflict cases even when that the fathers’ active engagement in the children’s life court mandated (Trinder, 2010, McIntosh & Smith, 2012, is inherently different and complement those of mothers. Smyth et. al. 2016). For instance, Trinder (2010); McIntosh Whereas fathers are often associated with novelty and & Smyth (2012) in their review of the literature, suggest excitement, and emphasize independence, competence and that in high conflict cohorts, there is evidence that shared frustration tolerance, mothers are often associated with calm parenting is associated with greater hyperactivity in boys. and nurturance, and a tendency to regulate and soothe. McIntosh and her colleagues (2012) argue that the Several authors (Pruett et. al. 2012, 2016 Lamb 2012), in their advantage of successful (low conflict) shared parenting analysis of the research on parenting plans and children’s for children are obvious and include: well-being, notes that, while fathers’ active participation • An active relationship with both parents. following divorce is beneficial, a critical moderating variable is the influence of maternal attitudes on the extent • Maintaining two active social support networks. of paternal involvement following the divorce. Mothers can be influential gatekeepers of parental involvement • Less risk of depleted emotional availability associated (see Austin, Kline-Pruett, Kirpatrick, Flens, & Gould with single parenting. 2013, Saini, Drozd & Olesen, 2017), through attitudes and • Happier mothers who can maintain work and family behaviors that limit or facilitate fathers’ opportunities for balance. meaningful contact with their children. • Happier fathers who can maintain a gratifying Young Children and Shared Custody level of involvement with their children. The issues of shared vs. sole custody comes Several authors (Trinder, 2010, Pruett et. to the fore particularly when dealing al. 2012, Pruett, Pape Cowan, Cowan, with young children (children below Pradhan, Robins and Pruett 2016, Lamb age of 4), as the question emerges of 2012, Bauserman, 2012) argue that the how to balance the need of fostering quality of the bond (e.g., as assessed The issues of shared vs. sole attachment, security and stability by the degree of involvement, the custody comes to the fore to a primary attachment figurewith warmth of the relationship, and particularly when dealing the concept of fostering a healthy the extent of open-communication with young children relationship with two parents. That between parents and children) is the relationship, by necessity, involves most critical variable in determining multiple and repeated transitions. the success of post-divorce sharing The evidence of the research here is arrangements—as opposed to quantity mixed. Pruett and her colleagues 2012, (the amount of time spent together by 2016 urge that caution is warranted in fathers and children.) However, Sandler et considering whether young children (below al. (2012) caution that the quality of parental time age 3) should spend regular overnights in two homes, following separation is the by-product of a multitude of especially in the presence of parental conflict, and dynamic factors including the social context (e.g., social that while overnights seem clearly beneficial for older support, stressors in parents’ life, interpersonal conflict) preschoolers, the risk and benefits for young children the characteristics of the child (e.g., child temperament) have yet to be clearly determined. McIntosh & Smyth and their parents. (2012) suggest that during the first years of life, repeated Bauserman (2012) meta-analytic review of the literature and prolonged absence from the primary caregiver figure referred above suggests some other interesting trends is uniquely stressful for young children. The research such as: reviewed by Smyth et. al. (2016) indicate that infants who have overnights weekly with the non-custodial • Joint custody fathers are more involved with their parent exhibit higher level emotionally dysregulated children and more satisfied in their relationship with behavior. Therefore, according to McIntosh & Smyth their children (as reported by fathers and mothers alike.) (2012) and Smyth et. al. (2016) shared parenting with

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 infants and preschool children carries increased risks. to gender-related differences in socialization processes (For a dissenting view, please refer to Dr. Warshak). and the expectations these gender related differences McIntosh & Smyth (2012) and Smyth et. al. (2016) further may create. Specifically, one wonders what weight suggest that parents should be encouraged to wait for should be given to the fact that historically women have the child’s attachment to be secured and for the child’s often functioned in the role of primary child caretaker. cognitive-language skills to further develop so that the May this sociological trend partially account for this child is ready to master the task of repeated transitions finding? Future research may want to explore the role and separations from the child’s primary caregiver. of expectations that mothers and fathers carry when considering the level of satisfaction with regard to shared Children’s view on shared v. sole custody parenting arrangements. What are the children’s views on shared vs. primary care arrangements? While the divorce literature has suggested Role of High Conflict on Shared that children miss the presence of their father, children’s Parenting Arrangements. views of shared care is highly contingent upon the nature When high conflict is factored in the equation of shared of such arrangements. Haugen (2010), in a qualitative parenting, mothers are more likely to report that such study in Norway involving 15 children in shared custody, arrangements are not working for their children, found that, for some children, shared parenting seemed a compared to mothers with sole custody (Trinder, 2010, pleasure because it allows them to maintain a relationship Bauserman, 2012.) Furthermore, these conditions bode ill with both parents, while for others, it was experienced for children’s adjustment. Trinder, 2010 and Bauserman, as a burden because it involved constant back and forth, 2012 converge to suggest that shared care in the high and not having a single place they could call home. conflict population, far from resolving the problem, seems Some universal factors seem to account for children’s to perpetuate and even accentuate the conflict, and as a satisfaction with post-divorce care arrangements. result, the children are caught in the crossfire. These include the following: One potential implication of these findings (a) Whether children’s needs and is that the debate between shared versus wishes are prioritized, or whether sole custody may be a straw man, the arrangements are based on the because the level of parental conflict needs of the parents. Most of this research is may be a critical variable upon which cross sectional (comparing viable post-divorce arrangements (b) Whether the arrangements groups at one point in time) (shared versus sole custody) should are flexible or rigid. Specifically, be predicated. rigid arrangements that are not and therefore correlational responsive to children’s needs are in nature. Some Confounding more likely to lead to poor outcomes Variables (McIntosh & Smith, 2012.) Research in the area of shared (c) Whether the children feel equally at parenting is complicated by a number of home with both parents. factors. For instance, most of this research is cross sectional (comparing groups at one point (d) Whether the children feel that they have a voice in time) and therefore correlational in nature. Hence, in the living arrangements rather than having such no causality can be assumed. To illustrate, if shared arrangements imposed on them. parenting works, one needs to consider whether this is The Role of Gender because families who entered into such an arrangement have a more favorable history of conflict management A consistent theme across studies reviewed by Bauserman anteceding the divorce and are more predisposed (2012) was that primary custodial fathers were equally or toward conflict resolution. This raises the specter of self- more satisfied, when compared to fathers with shared selection, meaning that the differences in shared versus caring arrangements. However, joint custody mothers sole custody may have little to do with the arrangement reported less satisfaction than sole custody mothers per se, and may be more likely to reflect certain even though they reported less parenting stress. How enduring characteristics associated with successful is one to make sense of these gender-based findings? parenting. In fact, some variables have been associated One hypothesis worth considering is whether the level with successful engagement in shared parenting. For of parental conflict was controlled for in Bauserman’s instance, Bauserman (2012) & Trinder (2010) have analysis. An alternative hypothesis, warranting further found that parents who are able to successfully engage investigation, is whether these findings may be related in shared parenting tend, on average, to be older, better

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 educated, earn higher incomes and live in relatively like relationship, distrust one another, and whose close proximity to one another. Stated differently, parenting arrangements are not child focused. age, level of education and level of income seem to be correlated with fruitful shared parenting plans. 5. Parents with limited external resources. Another intriguing finding in Bauserman’s review (2012) was that, in joint custody, a greater degree of Additional Factors that are Correlated with contact between fathers and children occurs irrespective Negative Outcomes are: of whether the arrangement involves physical or legal 6. The parents’ difficulty in operating within the custody. This suggests that joint custody fathers may framework of the child’s best interest. reflect a cohort of people with a higher pre-existing level of commitment to their children. 7. The parents’ fixation on achieving parity of time. Protective & Risk factors in Shared- 8. The parents’ poor emotional availability to their child. Parenting Plans 9. Poorly managed interpersonal conflict between the Trinder (2010) and Bauserman (2012), in reviewing the parents. available research, conclude that early or pre-existing The authors emphasize the importance of pragmatic family characteristics predict subsequent pathways and outcomes following a divorce. In their view, co- parenting plans with an accent on child focused operative parents tends to develop flexible shared care arrangement as being critical in maintaining viable arrangements and positive outcomes, whereas high post-divorce arrangements. conflict parents develop rigid arrangements that are Smyth et. al (2016) note five domains that relate to child associated with poorer children’s adjustment and lower levels of child satisfaction. Thus, in addition to looking outcome in shared time arrangements to assess the risk at the efficacy of different post-divorce arrangements, and benefits of such arrangements. These domains time would be well spent in delineating what include (1) the safety and security in the caregiving distinguishes the cooperative low conflict group of environment (e.g., the presence of violence and parents from their high conflict counterparts. protracted parental conflict are risk factors that (Some of these differences have already negatively impact on the safety and security been delineated – age, socio-economic of children);(2) The parenting quality status) but clearly further research is and the parent child relationship needed. The reviewed research does (e.g., growing up in an environment not support the view that simply The reviewed research does not support the with two trusted and good enough dividing children’s time between parenting relationships is likely to the parents ensures the children’s view that simply dividing prove beneficial to the child); (3) happiness. What matters most is the children’s time between Child specific factors, which factor quality of parenting time (warmth, the parents ensures the sensitivity, and discipline style) and children’s happiness. into the children’s developmental the ability of parents to focus on the needs (as noted, shared parenting children’s needs. Thus, time allocation arrangements may carry different should be secondary to an analysis of risk for children below the age of three the quality of the parent-parent and parent- compared to school age children); (4) The child relationships in post-divorce proceedings. nature of the shared parenting arrangements, and how those are exercised (e.g., the risk/benefits of McIntosh & Smith (2012) in their review of the literature shared arrangements will vary depending on variables identify some of the risk factors that predict poor shared such as the quality of the parental relationship, the parenting arrangements. These include the following: parental capacities and how these are practically 1. Younger parents, from lower socio-economic strata. implemented); (5) Practical considerations such as financial resources, work flexibility and geographic 2. Parents who live far apart. proximity are important variable to be considered 3. Parents who did not select a shared custodial in shared parenting. The authors maintains that the arrangement, but, rather, these arrangements were risk levels for shared parenting arrangements are imposed on them. significantly increased when the safety and security of the caregiving environment is potentially compromised. 4. Parents who are unable to maintain a business-

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Conclusions development of these milestones appears to be critical in alleviating the risk of strain that accompanies In dissecting this large body of the literature on shared repeated movements between two homes and parenting versus sole custody some lines of consensus repeated separation from primary caregivers. appear to emerge. Some Methodological Issues 1. Children seem to benefit from shared arrangements when their parents are able to jointly establish viable • Most of the studies reviewed did not have a comparison parenting plans and are able to co-parent in respectful or a control group. and cooperative fashion that factors in the children’s • Studies differed with respect to samples, and approach needs first and foremost. to measurements. How do we get around these issues 2. Shared parenting works best when children are when we seek to compare various research findings? provided with the opportunity to maintain meaningful • How does one define shared parenting? Is it a 50/50 and satisfying relationship with both parents and have split, a 35/65 split? a voice in such arrangements. • How we define our clinical samples? Is it wise to 3. Shared-parenting that increases the frequency of combine cooperative self-selecting families with court child’s exposure to conflict is associated with poor mandated high conflict families that have been forced socio-emotional outcomes for the children. into shared arrangements? 4. Children do not benefit of parenting arrangements • Can we assume that joint legal and joint physical that are rigid and unresponsive to their needs. custody are one and the same for research purposes 5. Shared parenting plans must consider the age of the or are they likely to contaminate findings when children. It may be less advisable for children under the pooled together? age of three because, by that point, preschoolers have As previously noted, many of the reviewed studies yet to develop an ability to self-soothe, organize their own feelings and behaviors, or use and understand are cross-sectional and correlational in nature with no language to communicate their emotional states. The implications for causality. All of these factors would need to be considered in future research.

Alberto Yohananoff, Ph. D. is a private practitioner who specializes in forensic evaluations and in child custody evaluations. Dr. Yohananoff has served as a Senior Psychologist at Family Court Mental Health Services and was the Coordinator of the Forensic Psychiatry Program at North Shore University Hospital. Dr. Yohananoff is an Adjunct ProfessorReferences at the City College of New York and has presented on a variety of topics related to forensic assessments and child custody evaluations. He is member of the Interdisciplinary Forum on Mental Health and Family Law.

Austin, W. G., Kline-Pruett M., Kirpatrick, H.D., Flens, J.R., & Gould, J.W. (2013). Pruett, M.K., Cowan, C.P., Cowan, P.A., Oradhan, L., Robisn, S and Pruett, K.D. (2016) Parental Gatekeeping and child custody/child access evaluation: Part I: Conceptual Supporting father involvement in the context of separation and divorce. In L. Drozd, M. Framework Research and Application. Family Court Review, 51, pp. 485-501. Saini and N. Olesen (Eds.) Parenting Plan evaluations: Applied Research for the Family Court (Second Edition). New York: Oxford University Press. Robert Bauserman (2012). A meta-analysis of parental satisfaction, adjustment and conflict in joint custody and sole custody following divorce. Journal of Divorce& Pruett, M.K & DiFonzio, H. (2014) – Closing the gap: Research, policy, practice and Remarriage, 53, 464-488. shared parenting. Family Court Review, 52, 152-174. Haugen, g. (2010) Children’s Perspective on everyday experiences of shared residence. Sandler, I, Wolchik, S, Winslow, E. B., Mahrer, N.E., Moran, J.A., & Weinstock, D. (2012). Children and Society, 24, 112-122. Quality of maternal and paternal parenting following separation and divorce. In K. Kuehnle & L. Drozd (Eds.) Parenting Plan evaluations: Applied Research for the Family Lamb, M.E. (2012) Parenting Plan evaluations. Critical analysis of research on parenting Court. New York: Oxford University Press. plans and children’s well-being. Parenting Plan evaluations. In K. Kuehnle & L. Drozd (Eds.) Parenting Plan evaluations: Applied Research for the Family Court. New York: Saini, M.A., Drozd, L, M & Olesen, N.W. (2017). Adaptive and maladaptive gatekeeping Oxford University Press. behavior and attitudes: Implications for child outcomes after separation and divorce. Family Court Review, Vol. 55, pp. 260-272 Lamb M.E. (2016) Parenting Plan evaluations. Critical analysis of research on parenting plans and children’s well-being. In L. Drozd, M. Saini and N. Olesen (Eds.) Parenting Smyth, B.M., McIntosh, J.E., Emery, R. E., Higgs Howard S.L. (2016) Shared Parenting Plan evaluations: Applied Research for the Family Court (Second Edition). New York: Time: Evaluating the evidence of risks and benefits to Children. In L. Drozd, M. Saini Oxford University Press. and N. Olesen (Eds.) Parenting Plan evaluations: Applied Research for the Family Court (Second Edition). New York: Oxford University Press. McIntosh J. E., and Smyth, B. M. (2012) – Shared-time parenting: an evidence-based matrix for evaluating risk. In K. Kuehnle & L. Drozd (Eds.) Parenting Plan evaluations: Trinder, L. (2010). Shared residence: A review of recent research evidence. Child & Applied Research for the Family Court. New York: Oxford University Press. Family Law Quarterly, 22, 475-498. Pruett, M.K., Cowan, C.P., Cowan, P.A. and Diamond, J.S. (2012). Supporting father Warshak, R. A. (2018). Night shifts: Revisiting blanket restrictions on children’s involvement in the context of separation and divorce. In K. Kuehnle & L. Drozd (Eds.) overnights with separated parents. Journal of Divorce & Remarriage, 59, 282-323. Parenting Plan evaluations: Applied Research for the Family Court. New York: Oxford University Press.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 ASSOCIATION OF FAMILY AND CONCILIATION COURTS ASSOCIATION OF FAMILY AND CONCILIATION COURTS

13th Symposium on Child Custody

Guidelines and Standards and Rules, Oh My!

Denver, Colorado Embassy Suites By Hilton November 8-10, 2018

AFCC is an interdisciplinary and international association of professionals dedicated to improving the lives of children and families through the resolution of family conflict. AFCC is an interdisciplinary and international association of professionals dedicated to improving the lives of children and families through the resolution of family conflict.

FAMILY NEWS & VIEWS • A PUBLICATION OF AFCC-NEW YORK • 2018 Volume 2, Issue 2 Executive Board Board-At-Large Lawrence Jay Braunstein, Esq. Lauren Behrman, Ph.D. Co-President Catherine Cerulli, Ph.D. Robin D. Carton, Esq. Tomoko Kataoka, Esq. Co-President Seymour Moscovitz, Ph.D. Sherill Sigalow, Ph.D. Hon. Jane Pearl President-Elect Hon. Andrea Phoenix Daniel O’Leary Ph.D. Hon. Linet Rosado Immediate Past President Karen Rosenthal, Esq. Teresa Ombres, Esq. Timothy Tippins, Esq. Vice President Eric Wrubel, Esq. Karen Simmons, Esq. Leah Younger, Ph.D. Secretary Alberto Avi Yohananoff, Ph.D. Harriet Weinberger, Esq. Parliamentarian Emeritus Steven Demby, Ph.D. Prof. Andrew Schepard Hon. Jacqueline Silberman

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Editor-in-Chief Alberto Yohananoff, Ph.D. NYC Forensics LLC. 185 West End Ave., Ste. 1C New York, NY, 10023 Tel: (646) 284-5600 • Fax: (212) 706-9136 • Email: [email protected]